Glinski 1

Ivan Glinski Research Paper 5/22/12 To assimilate agitation, legitimate as such, with direct incitement to violent resistance, is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government. - Judge Learned Hand (S.D.N.Y.) Opinion in Masses Publishing v. Patten Centralized Government and the Emergence Free Speech Protections (1908-1920)

Many take for granted the current extent of Free Speech laws in the United States, which are some of the most liberal in the world. Americans are allowed to protest outside the White House, insult the president, and even burn the US flag. 1 It is not to say that these acts are encouraged, but under modern Constitutional interpretation neither federal nor state government can do anything to restrict them - in fact these rights are protected through the first and fourteenth amendments. However, this has not always been the case. The concept of a free trade in ideas and absolute protections from the majority have not always been popular. In the Progressive Era of the late 19th and early 20th century, people with unpopular political opinions such as socialists, anarchists, and conscientious objectors to World War One (WWI) were subjugated to abuse, imprisonment, and even death. Many of these brutal rampages were executed by local governments and vigilante organizations working side by side in what they saw as an effort to keep peace and stability in their communities. However, by the end of WWI, the federal government had severed its unholy alliance with vigilante groups and centralized its own power. Simultaneously, judicial opinions in US courts galvanized support for more extensive individual free speech protections. Combined, these forces replaced vigilante justice
1

Henry Cohen, Freedom of Speech and Press: Exceptions to the First Amendment, CRS Report for Congress, accessed March 10, 2012, www.fas.org/sgp/crs/misc/95-815.pdf.

Glinski 2

with a system of objective law embodied by Supreme Court Justice Holmess clear and present danger test. What lead to this radical shift? During the period of 1908-1920, a reinterpretation of the relationship between the federal government and First Amendment occurred. The main factors which lead to this were public reactions against local vigilante groups, who were attacking the Free Speech Fights of the Industrial Workers of the World (IWW), public denouncement of federally supported vigilante organizations such as the American Protective League (APL), the opposition to the Espionage and Sedition Acts by members of Congress, and the legal views of Justices Bourquin, Learned Hand, and Bourquin. This reinterpretation was a positive one in that it gave people the right to safely voice their opinions on the government. Although these rights would again be repressed during World War Two (WWII) and the Cold War, future cases such as Brandenburg v. Ohio would reference this era as precedent to protect the freedom of speech of even the most radical. 2 The legal and sociological foundations in which this reinterpretation occurred were deeply intrenched in the bad tendency principle3 , derived from English Common Law. The First Amendment reads: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.4
2

Document 45: Brandenburg v. Ohio (1969)," in Free Expression in America, ed. Sheila Suess Kennedy, Primary Documents in American History and Contemporary Issues (Westport, Connecticut; London: Greenwood Press, 1999), page 157-158.
3

David M Rabban, Free Speech in its forgotten years, ed. Arthur McEvoy and Christopher Tomlins, Cambridge Historical Studies in American Law and Society (Cambridge, UK: Cambridge University press, 1997), page 15-17.
4

Document 7: The First Amendment, United States Constitution (1791)," in Free Expression in America, ed. Sheila Suess Kennedy, Primary Documents in American History and Contemporary Issues (Westport, Connecticut; London: Greenwood Press, 1999), page 29-30.

Glinski 3

Although it is plainly stated that Congress shall make no law... abridging the freedom of speech, speech has never been argued to be an absolute right since it has the potential to injure others. Modern examples of restrictions include obscenity, commercial speech, and libel, all of which can be abused. There are specific legal tests to check if the speech is constitutional. For example, the Miller Test for obscene speech asks, whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest.5 If it does, the work is declared illegal and is banned. Similarly, many legal tests relating to Free Speech in the late 19th century were based on English Common Law, specifically the Commentaries on the Laws of England, by Sir William Blackstone. Published in 1766, the Commentaries were praised by Enlightenment philosophers for their support of rights such as life, property, and habeas corpus, and they played a prominent role in the American justice system and society. One of its major concepts is bad tendency, that an act is illegal because it has the tendency to cause harm. Blackstone stresses that individual duties to society must be maintained. One who benefits from the government and society has a duty to follow its laws and practices; not be a free rider. These duties included not only military service and taxes, but also moral duties, for if one makes his vices public, though they be such as seem principally to affect himself, (as drunkenness, or the like) they then become, by the bad example they set, of pernicious effects to society; and therefore it is then the business of human laws to correct them.6 Even today public drunkenness might be considered disturbing the peace, but
5 6

Henry Cohen, Freedom of Speech and Press: Exceptions to the First Amendment

William Blackstone Sir, "Chapter the First : Of the Absolute Rights of Individuals," in Commentaries on the Laws of England (Oxford: Clarendon Press, 1765-1769), 4: accessed April 6, 2012, http:// avalon.law.yale.edu/18th_century/blackstone_bk1ch1.asp.

Glinski 4

instead of referring to the actual physical ramifications, Blackstone stresses the pernicious effects to society. Bad tendency was based on the principle that if it has the potential to cause harm, even to something so abstract as public morality, it is illegal. Propinquity was not a question when seditious comments were made in a bar in Montana by a man so drunk that he probably couldnt get out of the bar himself to execute his threats - all that mattered was the tendency to violence.7 For example, in 1903 a British anarchist professor, by the name of John Turner, who was visiting the US, was apprehended by police for teaching and thereby advocating the overthrow of government by force or violence.8 There were no differences between trying professors for teaching and actively agitating - they both had a bad tendency. This was a legal culture based on subjective interpretation, and thus was easily abused both by moral progressives and vigilante groups carrying out laws that the government couldnt possibly uphold. The prevalence of the bad tendency test in the judicial system lead a situation where politicians created censorship laws that severely restricted freedom of speech and were often impractical, creating an environment where subjective vigilante justice prospered. One example of this is the Comstock Act (1873), which gave the US Post Office the duty of public censor. The post office was given the right to deny mailing of any literature that it considered adapted or intended for preventing conception or procuring abortion, or for any indecent or immoral use.9 By 1913, Anthony Comstock, after whom the law was named, bragged that he had seized 160

Arnon Gutfeld, "The Ves Hall Case, Judge Bourquin, and the Sedition Act of 1918," Pacic Historical Review 37, no. 2 (May 1968): page 170, accessed May 21, 2012, http://www.jstor.org/stable/3637070.
8 9

David M Rabban, Free Speech in its forgotten years, page 64-65.

Mary Alden Hopkins, "Birth Control and Public Morals: An Interview with Anthony Comstock," in Free Expression in America, ed. Sheila Suess Kennedy, Primary Documents in American History and Contemporary Issues (Westport, Connecticut; London: Greenwood Press, 1999), page 49-55.

Glinski 5

tons of obscene literature over the past forty-one years.10 Over those years he had persecuted publisher after publisher on charges of advocating anarchism, birth control, the dissolution of the institution of marriage, and free love, denying them the right to publish and sentencing them to jail.11 Here was a man who advocated for a law based on the undefined term of obscenity and then was able to sue publishers that the US government might not have gotten to, applying his own definition of obscenity. More examples of brutal vigilante justice permeated across the country. In Oregon, IWW speakers were violently driven out and attacked by townspeople who believed themselves to be assisting the government - labor agitators must have a negative influence. During WWI, as the mayor watched, a mob lynched a German-American coal miner who they held to be a spy. There was no real proof given, but the mob believed that they were helping enforce the Sedition Act which had been passed by Congress. Bad tendency gave the public free reign to subjugate others to their own interpretation of the law in instances where it saw the government impotent. One movement that put pressure on this concept was the IWW and the Free Speech Fights. The IWW fights were critical in arousing public sympathy against vigilante policing and forced the federal government to protect the IWW, challenging assumptions on free speech restrictions. The IWW was a large national union composed of mostly unskilled workers, many of whom had left the American Federation of Labor (AFL), which was seen as too proWashington. Like other unions, they used strikes to compel businesses to offer shorter hours, better conditions, and higher pay. What set these strikes apart from others was their emphasis on the right to voice their opinions on the company and the government, often in non-polite ways,
10 11

David M Rabban, Free Speech in its forgotten years, page 30. Ibid, page 32-40.

Glinski 6

through picketing, demonstrations, and mailings. They stood on their belief that the Bill of Rights protected their freedom to assemble and make their grievances heard. These were the methods of the Free Speech Fights, and they encountered strong opposition from big business interests merged with local government, often creating a quasi-legal industrial government. Most of these fights occurred between 1908-1917, with some of the most famous being in Spokane, San Diego, and Lawrence.12 There was a specific pattern that was followed. When negotiations between workers and businesses stalled, there would be a mass walk-out of workers who would then protest against the abuses of the company. Oftentimes, local pressure was not enough, so calls would go out across the country and soon the protestors ranks would be swelled by workers coming from the whole region. In the Lawrence, Massachusetts strike of 1912, the 23,000 workers were joined by 10,000 IWW members from the surrounding states, with some coming from as far as the Midwest.13 Town streets were clogged with demonstrators, many of whom talk[ed] themselves hoarse in denouncing the capitalist system and the perverted capitalist press. The most common podium was a big packing box...probably worth 10 cents.14 Citing their supposed advocacy for violence (most IWW did not support sabotage or revolution), authorities would restrict the areas where they could speak, as they did in San Diego, Fresno, and Spokane.15 Often however, the law was not at all consulted as town police rose and threw the IWW out. This was a perfect case to test the durability of vigilante enforced bad tendency.
12 13 14

Len De Caux, The living spirit of the wobblies (New York: International Publishers, 1978). Ibid, page 69-73.

"Lets I.W.W. Talk In Union Square," New York Times, April 12, 1914, accessed April 14, 2012, http:// query.nytimes.com/gst/abstract.html?res=FA0B17FB385916738DDDAB0994DC405B848DF1D3.
15

Len De Caux, The living spirit of the wobblies, page 110-113.

Glinski 7

The Free Speech Fights of the IWW attracted large media attention, forcing businesses and authorities to ease their attacks. In a fight in Missoula, Montana (1909), many IWW intentionally broke the speech ordinance and were sent to jail, in which they were singing, shouting, hunger-striking, and battleship-building (a collective noise-making technique).16 This proved so chaotic, and expensive, that the strikers were released and given the right to assemble and speak. This was a breakthrough and in a later fight in Spokane, Washington, the unionists printed in the Industrial Worker, the headline, Wanted - Men to Fill the Jails of Spokane." Within a day the jail was filled and a nearby military fort was made available. However, this proved too cumbersome and when local newspapers strongly reacted, the ordinance was lifted and the prisoners freed. 17 The public was soon informed of bullpens, a low rambling one-story structure without a floor, where hundreds of IWW were held for months without trial. William Haywood, one of the IWW leaders, testified in court that, [u]nder the crowded conditions their [the prisoners] health was very much impaired. 18 Public opinion became divided over the issue, but that was enough for the Federal Commission on Industrial Relations to describe the repressions as sheer brutality and wanton mischief, which were caused by arresting demonstrators either arbitrarily or under cloak of a traffic ordinance.19 In Denver, Police Commissioner George Creel, knowing that a crack-down would bring media attention and more

16 17

Len De Caux, The living spirit of the wobblies, page 50.

Gjohnsit, "History Lesson: Wobblie Free Speech Fights," Daily Kos (blog), November 2, 2011, accessed April 8, 2012, http://www.dailykos.com/story/2011/11/02/1031975/-History-Lesson-WobblieFree-Speech-Fights.
18

United States v. William D. Haywood (N.D. Ill. October 1918), accessed April 14, 2012, debs.indstate.edu/h427e9_1918.pdf.
19

David M Rabban, Free Speech in its forgotten years, page 109.

Glinski 8

chaos, simply did nothing and gave the IWW the right to talk their heads off.20 Similarly, In New York City, police commissioner Arthur Woods ordered the police to protect peaceful speakers from self-proclaimed vigilantes. 21 He argued that restrictions...are actually not restrictions, but safeguards22 to protect speakers, and that it is the duty of the police to protect them from violent mobs. One of the bloodiest attacks on the IWW was the Everett Massacre, and it helped discredit industry supported vigilantism. This was a perfect example of industry taking over local government: the Lumber barons, in their determination to get rid of the IWW, bypassed the mayor and the chief of police by organizing their own militia lead by local sheriff Donald McRae. McRae had 500 deputies armed, mostly locals who barely knew how to shoot a gun, and subsequently terrorized and drove 300-400 IWW out of the town. 23 When 250 of them retuned on a ship, they were were confronted by the deputies, and after refusing to leave, were promptly massacred. The IWW tried to react with its own firepower, but they were no match and the ship quickly left the scene of the tragedy. In the aftermath it was counted that 11 IWW had been killed and 31 wounded.24 Seattle Mayor Hiram Gill called the Everett deputies cowards in Everett who, without right or justification, shot into the crowd on the boat were the murders...McRae and his deputies had no legal right to tell the IWW or anyone else that they could not land there.25

20 21

Ibid, page 101.

"Woods Lays Down Law For Agitators," New York Times, January 3, 1915, accessed April 8, 2012, http://query.nytimes.com/gst/abstract.html?res=F30C13F73E5B17738DDDAA0894D9405B858DF1D3.
22 23 24 25

Ibid Len De Caux, The living spirit of the wobblies, page 112. Ibid, page 110. Ibid, page 116.

Glinski 9

Its not surprising that McRae was soon voted out of his office. Industry backed vigilante justice had been dealt a blow. The execution of Joe Hillstrom in 1915 was key in repositioning public opinion against repressive vigilante governments. Joe Hillstrom was an IWW songwriter living in Utah who was arrested for allegedly shooting at shopkeeper in Salt Lake City. There was only circumstantial evidence in that he had received a bullet-wound on the night of the shooting (so did several other people). However since he was a IWW, he was the only one prosecuted. The trial was a sham in that Hillstrom was already considered guilty and was depicted as a veteran criminal.26 He was executed in November 1915, and the consequences were far-reaching. The coalition assembled to defend him included the AFL, the Socialist Party, the Episcopal Bishop of Utah, the governments of Britain, Australia, and Sweden, and President Wilson27, groups that would have never allied, especially to protect an IWW. All of them called for a pardon or a fair re-trial, however Governor Spry of Utah denied these requests. Many newspapers that had been adamantly anti-IWW, painted Hillstrom in a positive light, printing arguments in his favor and petitions asking for a fair trial. They emphasized flimsy testimony28 , that Hillstrom did not look like the man she [the witness] saw29, and the flood of letters and petitions which have reached the office of Governor Spry.30
26 27 28

Ibid, page 95. Ibid, page 101-104.

P. J. Phelps, "The Case of Joe Hill," Colorado Springs Gazette, September 10, 1915, accessed April 15, 2012, America's Historical Newspapers (11E83F8047D1F018).
29

Frank B Scott, "Hillstrom Could Have Saved Self, Says His Lawyer He Refused at Last Moment to Testify," Salt Lake Telegram, August 24, 1915, accessed April 15, 2012, America's Historical Newspapers (119E6A9C0E842BD8).
30

"Executive Clemency for Hillstrom is Asked by Labor Men," Salt Lake Telegram, August 13, 1915, accessed April 15, 2012, America's Historical Newspapers (119E6A68AAD12A98).

Glinski 10

The Free Speech Rights, Everett Massacre, and execution of Joe Hillstrom challenged vigilante enforced bad tendency. Local governments were seen as corrupt and brutal, and therefore could not be left to their own. An extension of federal power would be necessary, and was enacted during WWI. At the same time, a new legal test which would be more objective, was direly needed. Although labor related citizen organizations had been largely discredited, federally supported citizen leagues such as the American Protective League (APL) gained strength during WWI. These leagues were based on the belief that since government cannot monitor all of the actions of its citizens, which was of special importance during war, citizen voluntarism was a necessary supplement. Many in the Wilson Administration agreed with this assessment and charged these societies with three tasks: rounding up people who failed to register for the draft as ordered in the Selective Service Act, enforce the Espionage and Sedition Acts by spying on their neighbors, and getting the public to support the war effort.31 The Bureau of Intelligence (BI) had only 300 employees to cover a country supposedly swarming with German agents. 32 Attorney General Gregory found a solution in June 1917 when Alfred Briggs, a wealthy Chicagoan offered to organize some of his friends and business partners who would help in the search for spies. Thus the APL was born and soon had over 100,000 members. Anyone could join for a dollar, and get a badge labeled Secret Service.33 They were, in all practicality, given the same authority as federal police, and often overstepped the limits of that power.

31

Thomas Fleming, Illusion of Victory: America in World War One (New York:Basic Books, 2003), page 102.
32 33

Ibid, page 103. Ibid, page 105-106.

Glinski 11

Just as local vigilantism, federal delegation of power also had its faults, and would be denounced for its disregard for civil liberties. American Protective League members committed unwarranted searches and seizures of private property, arrested suspected draft-dodgers on baseless charges, and committed acts of violence to supposedly disloyal Americans.34 In New York City, the APL carried out a three day long hunt for men who had failed to register for the draft. In the process they managed to arrest thousands of people on the sole charge that they didnt have their draft cards with them. They raided public spaces, from train stations, the Wall Street equitable building, and even theaters during performances.35 However, out of the 60,187 individuals arrested, only 199 were actually confirmed to be draft dodgers 36 - the whole operation seemed to be in doubt. Efforts to deliver spies to the state also failed. In April 1918, the APL arrested a Jehovahs Witness Congregation (called Russellites at the time) during services, for publishing their newspaper, Kingdom News, which was suspected of receiving German funding.37 No evidence however was revealed and they were released. In another incident, IWW strikers were forcefully rounded up by a clone organization of the APL, and were shipped from their homes in Arizona to a desert town in New Mexico, and made sure that they wouldnt return.38 Just like Donald McRaes suppression of the IWW, the APL abused citizen rights in its quest to perform the duties of the nation. The organization would subsequently be disbanded

34

Christopher Capozzola, Uncle Sam Wants You: World War One and the Making of the Modern American Citizen (Oxford; New York: Oxford University Press, 2008), page 42 .
35 36 37 38

Ibid, page 46-48. Ibid, page 48. Ibid, page 63. Thomas Fleming, Illusion of Victory: America in World War One, page 139.

Glinski 12

after the war. However, one particular movement that could not be so easily disbanded was sporadic individual vigilante justice. The culture of voluntarism, political obligation, and 100% Americanism fueled individual acts of vigilantism. The relationship between the individual and the state in this period was seen as one of mutual cooperation, with the individual fulfilling his duty to the state and then receiving the benefits of society. Wilson characterized this voluntarism as a nation which has volunteered in mass39. Many people who had not been drafted desired to fulfill that obligation as best they could. Men could catch spies, women could knit clothing for soldiers, and the whole family could ration food. Everyone had their part to play. Edna Shaw of St. Louis, Missouri, wrote to draft officials that her friend, Otto Schaflitzel, had fled registration. She wrote that he is so disloyal for only being 24 years of age and single. [He is] hurting my feelings, when he talks about the country, cause I have brothers in service and I will almost think . . . if I only had a gun I would kill him.40 However, the distinction between voluntarism, obligation, and simple anger was often hard to discern. In Columbia University, two professors were fired for working with anti-war groups. The New York Times praised the president of the University, Nicholas Butler, for, doing his duty 41. It remains to be questioned whether he was fulfilling his political duty, or just desiring to impose his will on the school curriculum. However, the event which forced Congress to act to protect individuals was when, in April 1918, a West Virginia Coal Miner by the name of Robert Prager was lynched by a mob that thought him to be a German spy.

39

Christopher Capozzola, Uncle Sam Wants You: World War One and the Making of the Modern American Citizen, page 86.
40 41

Ibid, page 38. Thomas Fleming, Illusion of Victory: America in World War One, page 105.

Glinski 13

The only crime that they then could accuse him of was being a German Immigrant and a Socialist. Senator Lee Overman argued that vigilante justice was a direct result of a widespread feeling in this community that the government will not punish disloyalty.42 The Sedition Act was passed just a month later and it signaled that the federal government would no longer permit vigilante justice, but would try individuals in the court of law. Organized vigilantism through societies such as the APL was also rooted out by a federal government that had become more assertive of its role. The director of the BI dictated to the APL that it did not have the power to make arrests.43 When a minister speaking at an anti-war rally was seized and whipped, President Wilson denounced this, proclaiming that he had no such sympathy with the men who take...punishment into their own hands44 . The president had publicly repudiated many peoples concept of voluntarism and vigilantism, and this had direct consequences. Many organizations including the US Post Office refused their services to the APL. Finally, the APL was ordered to return their badges because the title secret service might be misinterpreted to mean they actually had power sanctioned by the government. The federal government had finally resolved to take its own legal action by enforcing the Espionage Act of 1917, and its amendment in the Sedition Act of 1918 - however, would these laws preserve individual free speech on a more objective level? The Espionage and Sedition Acts brought the government into a position of regulator of speech, in which capacity it decided what speech was Constitutionally protected and what

42

Geoffrey R Stone, "World War I: 'Clear and Present Danger'?" in Perilous Times: Free Speech in Wartime, page 188.
43 44

Ibid, page 192. Ibid, page 157.

Glinski 14

wasnt. This seemed to mark the end of bad tendency, for the acts had specific language that could be charged on certain activity. Section Three of the Espionage Act declared that: Whoever, when the United States is at war, shall willfully make or convey false reports or false statements...shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both.45 Wilson also showed his support of the rule of law in Title VI, section 2: It shall be the duty of the person making any seizure under this title to a apply, with due diligence, to the judge of the district court of the Unite States...for a warrant to justify the further detention of the property so seized, which warrant shall be granted only on oath or affirmation showing that there is known or probable cause to believe that the property seized is being or is intended to be exported or shipped from or taken out of the United States in violation of law 46 From now on, all political voluntarism would have to go through government approval, and president Wilson would make sure of this. Under section three, alleged spies and traitors to the US army would be dealt with in a court of law. There were however protests against this clause from organizations such as the the National Civil Liberties Bureau (NCLB). Nevertheless, the first part of the Espionage Act that rallied public opinion against it and saw the popular emergence of the idea of free speech, was the so called media muzzle clause. It was enacted in order to prevent American newspapers from publishing informational about the war that could then be used by German spies to sent to the German army. It gave the Post office the right to declare unmailable any newspaper that contained this sensitive information or was of a

45

United States Congress, "Espionage Act of 1917," Wikisource, accessed May 21, 2012, last modied September 5, 2011, http://en.wikisource.org/wiki/Espionage_Act_of_1917.
46

Ibid

Glinski 15

treasonable or anarchist character47. This was attacked by newspapers and politicians alike, Representative William J. Cary characterized this as a proposition so full of menace to every vital principle of liberty, so contrary to every precedent and tradition of our past history48 . Senator Borah agreed with an editorial from the New York American, stating that, [t]he fundamentals of liberty are freedom of speech and freedom of printing. These two necessities and guarantees of freedom are just as essential to the intelligent conduct of war, by a democracy, as they are essential to the intelligent conduct of peace. 49 Nevertheless, the act passed and the federal government gained powers that it hadnt had since the Alien and Sedition Acts of the eighteenth century. Although it had prevented vigilante organizations from exacting their own justice, the act and its enforcement relied much on the principle of bad tendency - it would be in the American judicial system that the final most important defense of Free Speech would occur. With trials of sedition and Free Speech being relegated to the rule of law, district judges such as Learned Hand and George Bourquin would have to power to shape Free Speech protections as they saw fit. The first of these cases landed in the Southern District of New York into the court of judge Learned Hand, the case was Masses Publishing v Patten. The Postmaster General of New York had evoked the Espionage clause when he refused to mail The Masses, a Socialist magazine. This was bad tendency at its strongest as it was argued that the magazine tended to produce a violation of all three clauses of title I, section 350. The magazine, it was argued, had the tendency to arouse hatred against the US government, the war effort, and the
47

Geoffrey R Stone, "World War I: 'Clear and Present Danger'?" in Perilous Times: Free Speech in Wartime, page 147.
48 49 50

55 Cong Rec. (1917) (statement of William J. Cary, Representative from Wisconsin). 55 Cong Rec. (1917) (statement of William Borah, Senator from Idaho). David M Rabban, Free Speech in its forgotten years, page 261.

Glinski 16

Wilson administration among others. This hatred could then be turned into violent and illegal action. Among the inflammatory text used, there were many disturbing images in the magazine, including one with dead naked persons tied down to a cannon, with the words labor, youth, and democracy written on them. Judge Learned Hand however was cautious of indicting the magazine on account of some suggested tendency, he needed real evidence and a real test to prove the accusations. The incitement to violence, he reasoned, must be palpable and its effects evident. As he stated in his opinion, [t]he tradition of English-speaking freedom had depended in no small part upon the merely procedural requirement that the state point with exactness to just that conduct which violates the law51. If there was no specific evidence and definition of what was unmailable, then the government could forbid any political views that it did not hold itself, citing the tendency of opposing viewpoints to result in violence. Bad tendency was not strong enough a test for Justice Learned Hand, and although his decision would be shortly reversed, it played a major role in the destruction of the doctrine. Justice Bourquin of Montana was another judge who, through his opinion in the case Ves Hall v US, called to question the Espionage Act and the doctrine of bad tendency. In January 1918, Ves Hall, a resident of Rosebud County, Montana uttered several seditious phrases including that he would avoid the draft, desired that Germany would defeat he United States, and that President Wilson was a British tool, a servant of Wall Street, and the richest and crookedest ever president52 . He was arrested because these comments, it was argued, willfully obstruct the recruiting or enlistment service of the United States. Judge Bourquin however ruled against

51 52

Ibid, page 264.

Arnon Gutfeld, "The Ves Hall Case, Judge Bourquin, and the Sedition Act of 1918," Pacic Historical Review 37, no. 2 (May 1968): page 167, accessed May 21, 2012, http://www.jstor.org/stable/3637070.

Glinski 17

this interpretation, basing he opinion on the concept of propinquity and that a trade in ideas is necessary for democracy. Bourquin argued that Montana was basically in the middle of nowhere, and hundreds of miles from any military base. He stressed the fact that Hall was a small communal farmer and had made his statements as gossip. Hall couldnt have in any way disrupted the draft from Rosebud County, Montana. No physical proof had been given that the language resulted in any substantial action other than his arrest. Borquin also wrote that political discussion is necessary for people to express their views in a democracy, and that those who stifle it, such as super-patriots, were really using patriotism as a cover from which to wreak private vengeance and to work private ends53. Bourquins decision was also reversed, but the trend had been set, and now it was left for the supreme court to decide. It was in the Supreme Court that an opposing test to judge seditious speech, the clear and present danger test was articulated, and became the main defense of Free Speech activists. Justice Oliver Wendell Holmes was an unlikely candidate to overrule bad tendency - he had in all purpose supported it in an earlier case (Patterson v. Colorado - 1907). In Patterson, the US Senator from Colorado, Thomas Patterson, was charged with contempt of court for having allowed the publication of several articles (some written by himself) in the many Denver newspapers that he controlled. The articles denounced the State Supreme Court, which was full of his political enemies, as being manipulated and having the purpose of carrying out certain business propositions which would bring millions upon millions of dollars to said third persons, unnamed, and specifically to William G. Evans 54, a local industry boss. The State attorney general indicted Patterson on charges of contempt of court, arguing that the attacks in
53 54

Ibid, page 169. Thomas M. Patterson v. The People Of The State Of Colorado, 205 U.S. 454 (1907) (LEXIS).

Glinski 18

newspapers are designed and intended to interfere with, intimidate, and embarrass this court in the due and impartial administration of justice55 . Pattersons defense argued that the truth must be looked at and if the accusations made by Patterson were proved to be correct, then they would not be considered libel or contempt. He also argued that the Colorado Constitution protects freedom of the press and for the first time that first amendment protections were incorporated into the fourteenth amendment. However, the Supreme Court was against him. Justice Oliver Wendell Holmes, writing for the majority, argued that courts of law, being such crucial political agents, must be protected from malicious attacks. [I]f a court regards, as it may, a publication concerning a matter of law pending before it as tending toward such an interference, it may punish it as in the instance put. When a case is finished, courts are subject to the same criticism as other people, but the propriety and necessity of preventing interference with the course of justice by premature statement, argument, or intimidation hardly can be denied.56 This was the embodiment of bad tendency, for it relied on very unclear doctrines of the preservation of state and of a sheltered judiciary. The possible fact that those opinions were correct was overlooked because of the simple argument that these charges caused discontent and instability. The later Espionage and Sedition Acts would continue to embody bad tendency in the early cases of Schenck and Debs. Although Schenck v. US created the clear and present danger test, it was still dependent on bad tendency, but by Abrams v. US, clear and present danger had established its autonomy. In was in the case of Schenck v. United States that Justice Holmes articulated his test for free Speech:
55 56

Ibid Ibid

Glinski 19

The question in every case is whether the words used are used in such circumstance and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. The case of Schenck v. US was brought when it was discovered that Schenck, one of the leaders of the Socialist Party had sent out flyers and brochures to people who were considering drafting themselves, and to those who already had. The brochure told them that the draft was unconstitutional and that they should support their rights by not registering for the draft. in this case, it was judged that Schenck had enough resources and was physically contacting people that he could be making a calculable interference in the draft - a violation of the Espionage Act. This was however, the first decision which focus almost completely on the strength and limitation of the Freedom of Speech. In Abrams v US, although the majority upheld the conviction based on the Espionage Act, Holmes, together with Justice Brandeis, applying the clear and present danger test, dissented and created a more objective test that would protect Free Speech. The defendants were a group of Russian Jews who had immigrated to the US, and during WWI had composed and distributed leaflets that denounced the American involvement in the Russian revolution and insulted President Wilson. The central indictment was that since they had called for workers in munition factories to stop working, they had urged the curtailment of war production, with intent of this curtailment to cripple or hinder the United States in the prosecution of the war57. Holmes defended Abrams, using arguments of propinquity, free trade in ideas, and the benefits given to a democracy by it. He called the published leaflets silly, and seemed to laugh at the idea that they posed a danger to the United States. Even though it was argued, as in the Ves Hall

57

Oliver, Wendell Holmes, Jr Two Leaets and an Experiment. In The mind and faith of Justice Holmes, edited by Max Lerner (New York: The Modern Library, 1943), page 305.

Glinski 20

case, that the specific ability of an individual to interfere with the war effort does not play a part, it is only their intent to do so, Holmes argued that it needed to be the proximate motive of the specific act even if there might be some other deeper motive behind. 58 There must be a clear line drawn between the action and result for it to be punished, and Holmes did not find it. This case set the precedent for an objective defense of Free Speech which would later gain old in the Supreme Court in cases such as Gitlow v. New York and Brandenburg v. Ohio. The two tendencies of the government to legislate power from vigilante organizations to specific laws such as the Espionage and Sedition Acts, and for the Supreme Court to replace bad tendency with objective tests lead to greater protections for Free Speech. The political culture of the nation had shifted dramatically to one based on protections and greater understanding for radicals. In 1919 and 1920 for example, Attorney General Alexander Palmer conducted raids on suspected anarchists and Communists in order to deport them. He actions and their constitutionality were challenged by the Assistant Secretary of Labor, Louis Freeland Post, however when Palmer called for an impeachment of Post, the House Rules Committee ruled against him. When Massachusetts District Court Judge George Anderson ordered some of the anarchists to be discharged, the whole campaign fell apart. The American Civil Liberties Union (ACLU) would be founded in 1920 and would be a powerful force in protecting civil liberties in the court system. Although there would be a period of Free Speech repression in the Second World War and the Cold War, this period was defining in creating the concept of individual Free Speech protections.

58

Ibid, page 309.

Glinski 21

Bibliography Blackstone, William, Sir. Chapter the First : Of the Absolute Rights of Individuals. In Commentaries on the Laws of England, 116-141. Vol. 4. Oxford: Clarendon Press, 1765-1769. Accessed April 6, 2012. http://avalon.law.yale.edu/18th_century/ blackstone_bk1ch1.asp. William Blackstones Commentaries are the basis of much of the Common Law cases in the United States in the 19th century. They are divided into several chapters on different specific subject - the one that I used was on the absolute right of individuals. Theyre somewhat annoying to read since they are scanned and converted copies, which result in a misspelling of some of the words. Capozzola, Christopher. Uncle Sam Wants You: World War One and the Making of the Modern American Citizen . Oxford; New York: Oxford University Press, 2008. This book discusses the presence of a sense of obligation in the US home front during World War One. It discusses how society functioned, with the presence of many super-patriots who persecuted draft dodgers and conscientious objectors. It also discusses the American Patriotic League in detail. Cohen, Henry. Freedom of Speech and Press: Exceptions to the First Amendment. CRS Report for Congress. Accessed March 10, 2012. www.fas.org/sgp/crs/misc/95-815.pdf. This is a report compiled by the Congressional Research Service which informs Congress to make more informed decisions on bills. This report outlines all of the main categories of protected speech and to what extent theyre protected, including decisions from some landmark court cases. The part detailing libel was very informative in my research. Daily Kos (blog). http://www.dailykos.com/. This is a Progressive blog that has a strong national reputation. It had a very informative article on the Industrial Workers of the World and the repression that followed their strikes. It had a strong bias in favor of the demonstrators and emphasized the conditions that they are left to. De Caux, Len. The living spirit of the wobblies. New York: International Publishers, 1978. This book is on the early history of the Industrial Workers of the World by an individual who was a member at the time. It talks about the foundations of the organization, its major leaders, the Free Speech Fights both in the west and east, and asks why the organization seemed to vanish. It was my central source in my discussion of the IWW. It also had strong bias in favor of the IWW

Glinski 22

and provided many eyewitness accounts of the events. Fleming, Thomas. Illusion of Victory: America in World War One. New York: Basic Books, 2003. This is a book describing the whole effort of the United States in World War One, both the home front, the Western Front, and international negotiations. The information on the APL and other super-patriots on their reaction to the US declaration of war was very revealing. Also, the description and quotes from Congressional debates on the declaration of war and the Espionage Act were very useful. Gutfeld, Arnon. The Ves Hall Case, Judge Bourquin, and the Sedition Act of 1918. Pacific Historical Review 37, no. 2 (May 1968): 163-178. Accessed May 21, 2012. http:// www.jstor.org/stable/3637070. This journal article describes the Montana Supreme Court case Ves Hall v. United States. It traces the legal arguments of both the prosecution and of justice Bourquin through judicial terms such as bad tendency and propinquity. It supports Bourquin in the argument and paints him in a positive light. Holmes, Oliver Wendell, Jr. Two Leaflets and an Experiment. In The mind and faith of Justice Holmes, edited by Max Lerner, 304-313. New York: The Modern Library, 1943. This is a section from a book of primary documents on the writings of Supreme Court Justice Oliver Holmes. It has his early writings including sections from Common Law, his major legal work, and his decisions from both the Massachusetts Supreme Court and the US Supreme Court. This is very useful for primary quotes. Max Lerner provides very informative commentary. Hopkins, Mary Alden. Birth Control and Public Morals: An Interview with Anthony Comstock. In Free Expression in America, edited by Sheila Suess Kennedy. Primary Documents in American History and Contemporary Issues. Westport, Connecticut; London: Greenwood Press, 1999. This is a sourcebook of primary documents relating to Free Speech litigation. It has the text of laws, selections from interviews, and selections from landmark Supreme Court decisions. This was the only place that there was direct citation from Anthony Comstock, which helped explain his understanding of bad tendency.

Glinski 23

New York Times. Woods Lays Down Law For Agitators. January 3, 1915. Accessed April 8, 2012. http://query.nytimes.com/gst/abstract.html? res=F30C13F73E5B17738DDDAA0894D9405B858DF1D3. This is a New York Times Article from 1915 that describes the way that New York police reacted to the Industrial Workers of the World who were demonstrating in the city. It quotes police commissioner Arthur Woods which describes his understanding of individual rights and the duties of the police. This article was written in a tone of surprise toward Woods decision. New York Times. Lets I.W.W. Talk In Union Square. April 12, 1914. Accessed April 14, 2012. http://query.nytimes.com/gst/abstract.html? res=FA0B17FB385916738DDDAB0994DC405B848DF1D3. This is another New York times article about police reaction to the Industrial Workers of the World. Here again, the IWW were allowed to speak in Union Square. This was a surprising turn of events, and the tone of the article displays this. Phelps, P. J. The Case of Joe Hill. Colorado Springs Gazette, September 10, 1915. Accessed April 15, 2012. Americas Historical Newspapers (11E83F8047D1F018). This is an article from a Colorado newspaper on the prosecution of Joe Hill, a IWW member. It paints a positive picture of Joe Hill, arguing that he was innocent that bring to head the fact that there was barely any evidence to indict him. This is useful in understanding how public opinion had changed toward the IWW on account of the Joe Hill case. Rabban, David M. Free Speech in its forgotten years. Edited by Arthur McEvoy and Christopher Tomlins. Cambridge Historical Studies in American Law and Society. Cambridge, UK: Cambridge University press, 1997. This book makes the argument that there was a lot of Free Speech litigation before the Espionage Act, despite popular scholarly opinion. The book centers on debates relating to obscenity, which was the main Free Speech inhibitor before World War one Its legal discussion and commentary is very insightful and easy to understand. It was critical in understand future court cases and the foundations that laid the base for legal arguments. Salt Lake Telegram. Executive Clemency for Hillstrom is Asked by Labor Men. August 13, 1915. Accessed April 15, 2012. Americas Historical Newspapers (119E6A68AAD12A98). This is an article on the Joe Hill case in Colorado. The underscores the popular support that Joe Hill had been getting from surrounding organizations, especially labor unions. Through all of this support, the article questions if maybe a fair re-trial should be made.

Glinski 24

Scott, Frank B. Hillstrom Could Have Saved Self, Says His Lawyer He Refused at Last Moment to Testify. Salt Lake Telegram, August 24, 1915. Accessed April 15, 2012. Americas Historical Newspapers (119E6A9C0E842BD8). This is another article about Joe Hill. It questions why Joe Hill didnt have a stronger defense. It hints to the question whether he sacrificed himself on purpose in order to raise awareness of abuses toward the IWW. Stone, Geoffrey R. World War I: Clear and Present Danger? In Perlious Times: Free Speech in Wartime , 135-235. New Yok: W. W. Norton & Company, 2004. This is a very useful source about Free Speech restrictions relating to seditious speech throughout US history. I focused on the first world war section. Thomas M. Patterson v. The People Of The State Of Colorado, 205 U.S. 454 (1907) (LEXIS). This is the case of Patterson v. Colorado, the main opinion being written by Oliver Holmes. United States Congress. Espionage Act of 1917. Wikisource. Accessed May 21, 2012. Last modified September 5, 2011. http://en.wikisource.org/wiki/Espionage_Act_of_1917. This is the text of the Espionage Act of 1917.